WHAT IS PRODUCT LIABILITY? DEFECTIVE OR DANGEROUS PRODUCTS

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What is Product Liability

What is Product Liability?

Defective or dangerous products are the cause of thousands of injuries every year in the U.S. "Product liability law," the legal rules concerning who is responsible for defective or dangerous products, is different from ordinary injury law, and this set of rules sometimes makes it easier for an injured person to recover damages.

Product liability refers to a manufacturer or seller being held liable for placing a defective product into the hands of a consumer. Responsibility for a product defect that causes injury lies with all sellers of the product who are in the distribution chain. Potentially liable parties include: the product manufacturer; a manufacturer of component parts; the wholesaler, and the retail store that sold the product to the consumer.

In general terms, the law requires that a product meet the ordinary expectations of the consumer. When a product has an unexpected defect or danger, the product cannot be said to meet the ordinary expectations of the consumer.

There is no federal product liability law. Typically, product liability claims are based on state laws, and brought under the theories of negligence, strict liability, or breach of warranty. In addition, a set of commercial statutes in each state, modeled on the Uniform Commercial Code, will contain warranty rules affecting product liability.

Responsible Parties

For product liability to arise, at some point the product must have been sold in the marketplace. Historically, a contractual relationship, known as "privity of contract," had to exist between the person injured by a product and the supplier of the product in order for the injured person to recover. In most states today, however, that requirement no longer exists, and the injured person does not have to be the purchaser of the product in order to recover. Any person who foreseeably could have been injured by a defective product can recover for his or her injuries, as long as the product was sold to someone.

Liability for a product defect could rest with any party in the product's chain of distribution, such as the manufacturer, wholesalers, a retail seller of the product, and a party who assembles or installs the product. For strict liability to apply, the sale of a product must be made in the regular course of the supplier's business. Thus, someone who sells a product at a garage sale would probably not be liable in a product liability action.

Types of Product Defects

Under any theory of liability, a plaintiff in a product liability case must prove that the product that caused injury was defective, and that the defect made the product unreasonably dangerous. There are three types of defects that might cause injury and give rise to manufacturer or supplier liability: design defects, manufacturing defects, and marketing defects. Design defects are present in a product from the beginning, even before it is manufactured, in that something in the design of the product is inherently unsafe. Manufacturing defects are those that occur in the course of a product's manufacture or assembly. Finally, marketing defects are flaws in the way a product is marketed, such as improper labeling, insufficient instructions, or inadequate safety warnings.

Design Defects
A design defect is some flaw in the intentional design of a product that makes it unreasonably dangerous. Thus, a design defect exists in a product from its inception. For example, a chair that is designed with only three legs might be considered defectively designed because it tips over too easily. Design defect claims often require a showing of negligence; however, strict liability may be imposed for an unreasonably dangerous design if the plaintiff can present evidence that there was a cost-effective alternative design that would have prevented the risk of injury. In some cases, if a product was so unreasonably dangerous that it never should have been manufactured, the availability of a safer design might not be required to hold the designer liable.

Manufacturing Defects
A product has a manufacturing defect when the product does not conform to the designer's or manufacturer's own specifications. Manufacturing defect cases are often the easiest to prove, because the manufacturer's own design or marketing standards can be used to show that the product was defective. But proving how or why the flaw or defect occurred can be difficult, so the law applies two special doctrines in product liability cases to help plaintiffs recover even if they cannot prove a manufacturer was negligent.

The first doctrine, known as "res ipsa loquitur," shifts the burden of proof in some product liability cases to the defendant(s). Translated, this Latin term means "the thing speaks for itself," and indicates that the defect at issue would not exist unless someone was negligent. If the doctrine is successfully invoked, the plaintiff is no longer required to prove how the defendant was negligent; rather, the defendant is required to prove that it was not negligent.

The second rule that helps plaintiffs in product liability cases is that of strict liability. If strict liability applies, the plaintiff does not need to prove that a manufacturer was negligent, but only that the product was defective. By eliminating the issue of manufacturer fault, the concept of no-fault, or "strict" liability allows plaintiffs to recover where they otherwise might not.

Marketing Defects
Marketing defects include improper labeling of products, insufficient instructions, or the failure to warn consumers of a product's hidden dangers. A negligent or intentional misrepresentation regarding a product may also give rise to a product liability claim.

Unavoidably Unsafe Products

By their nature, some products simply cannot be made safer without losing their usefulness. For example, an electric knife that is too dull to injure anyone would also be useless for its intended purpose. It is generally believed that, as to such products, users and consumers are the best equipped to minimize risk. Thus, while a product might not be deemed unreasonably dangerous, manufacturers and suppliers of unavoidably unsafe products must give proper warnings of the dangers and risks of their products so that consumers can make informed decisions regarding whether to use them.

Common Defenses to Product Liability Claims

A defense often raised in product liability cases is that the plaintiff has not sufficiently identified the supplier of the product that allegedly caused the injury. A plaintiff must be able to connect the product with the party(ies) responsible for manufacturing or supplying it. There is an exception to this rule, known as the "market share liability" exception, which applies in cases involving defective medications. Where a plaintiff cannot identify which of the pharmaceutical companies that supply a particular drug supplied the drug he/she took, each manufacturer will be held liable according to its percentage of sales in the area where the injury occurred.

Another defense a manufacturer might raise is that the plaintiff substantially altered the product after it left the manufacturer's control, and this alteration caused the plaintiff's injury. A related defense is that the plaintiff misused the product in an unforeseeable way, and that his/her misuse of the product cause the injuries alleged.

Getting Legal Help for a Defective Product Injury

Product liability actions are often quite complex, and establishing legal fault often requires the assistance and testimony of experts. There are several theories under which a plaintiff might bring a claim, and several defenses that might defeat such a claim. Additionally, every state has its own laws and specific statutes that will affect a product liability action. Accordingly, it is important to consult an experienced attorney if you or a loved one suffers injury caused by a potentially defective product.

Defective and Dangerous Products - Proving Fault

If you have been injured by a defective or dangerous product, you may have an easier time recovering compensation for your injuries than those who are injured in other ways. This is because special rules and theories of recovery have been developed in the area of product liability law. A person may recover against a manufacturer or seller based on one or more of the following theories: strict liability; negligence; and, breach of warranty, depending on the law in the applicable state. The most commonly asserted theory, strict liability, is discussed here.

Strict Liability Defined

Ordinarily, to hold someone liable for your injuries, you must show that they were careless, that is, negligent, and that their carelessness led to the your injuries. With products sold to the general public, however, it would be extremely difficult and prohibitively expensive for one individual to have to show how and when a manufacturer was careless in making a particular product. Neither can the consumer be expected to prove whether the seller or renter of a product had a proper system for checking for manufacturer's defects, or whether the seller caused the defect after receiving the product from the manufacturer. Finally, a consumer cannot be expected to check each product before using it to see if it is defective or dangerous.

For all these reasons, the law has developed a doctrine known as "strict liability," that allows a person injured by a defective or unexpectedly dangerous product to recover compensation from the maker or seller of the product, without showing that the manufacturer or seller was actually negligent.

Here's how strict liability works: If you have been injured by a consumer product, you are entitled to compensation from the manufacturer or from the business that sold or rented the product directly to you. Strict liability operates against a non-manufacturer who sold or rented a product only if it is in the business of regularly selling or renting those particular kinds of products. In other words, if you bought something at a flea market stall, garage sale or thrift store that sells all kinds of things but not any one type of item on a regular basis, strict liability may not apply.

Rules of Strict Liability

Regardless of what steps a manufacturer or seller says it took in making and handling a consumer product, you can make a strict liability claim, without showing any carelessness on the part of the manufacturer or seller, if all three of the following conditions exist:

The product had an "unreasonably dangerous" defect that injured you as a user or consumer of the product. The defect can come into existence either in the design of the product, during manufacture, or during handling or shipment;
The defect caused an injury while the product was being used in a way that it was intended to be used;
The product had not been substantially changed from the condition in which it was originally sold. "Substantially" means in a way that affects how the product performs.

Manufacturers' and Sellers' Defense: Awareness of the Defect

Manufacturers and sellers have a defense to claims of strict liability that may be particularly important if you have owned the product for a while. That is, you may not be able to claim strict liability if you knew about the defect but continued to use the product. If it appears, either from the condition of the product (which the manufacturer's or seller's insurance company will have a right to examine) or from your description of your use of the product, that you were aware of the defect before the accident but used the product anyway, you may have given up your right to claim injury damages.

What Is an Unavoidably Unsafe Product?

If a prescription drug, vehicle component, or other consumer product has caused an injury to you or a loved one, you may be what happens when a product is carefully designed, manufactured and marketed, but is dangerous nonetheless. Must a manufacturer, distributor, or seller of the product bear responsibility? The answer depends in part on whether the product falls within very specific guidelines to qualify as an "unavoidably unsafe product." If a product is found to be unavoidably unsafe then it is not a defective product, even though it might cause injury.

Is the Product Defective?

As a general rule, the question central to any product liability case is whether the product is in fact defective. A product can be defective in a number of ways. If a product is marketed with inadequate instructions or warnings as to foreseeable risks, it has a marketing defect. If a product is manufactured with a flaw, but the design and marketing of the product are fine, it is called a manufacturing defect. If a product is designed in such a way that it is foreseeable that injury could result, and if the risk of injury could have been reduced by an alternative design, then a product is said to be defective in its design. When looking at alternative designs, courts will look at the costs associated with the alternative designs. Courts also look at whether the proposed alternative would have reduced the foreseeable risks of harm associated with the product, and whether the failure to use the alternative design made the product unreasonably unsafe at the time it was manufactured. Usually, if a product is defective in the way that it is marketed, manufactured, or designed, and someone is injured as a result of that defect, then the manufacturer, distributor and/or seller of the product are liable, or responsible for consequences of the defect. The courts have however carved out an exception for products considered "unavoidably unsafe."

Is the Product Unavoidably Unsafe?

An unavoidably unsafe product is not necessarily a product that is by its nature dangerous. Rather, it is a product that is incapable of being made safe for its intended and ordinary use. What makes a product unavoidably unsafe as opposed to downright dangerous? Courts generally look at four criteria in making the determination: the manner in which the product was prepared, the manner in which it was marketed, the utility of the product compared to the risk it poses and whether there are any alternatives to the product available.

Preparation

If a mistake is made while manufacturing the product and that mistake makes the product ineffective or dangerous, the product may not be unavoidably unsafe. In the case of a prescription drug or vaccine, the product must not be adulterated and it must actually work as intended. If it is not prepared correctly or is ineffective, then it can not fall under the unavoidably unsafe exception. While a product cannot be adulterated and qualify for the exception, it can contain impurities in the ingredients. So, for example, blood tainted with impurities such as hepatitis or HIV might qualify for the exception.

Marketing

The second requirement of the unavoidably unsafe exception is that the product be appropriately marketed. If the directions accompanying the product are faulty, or if the product is sold with inadequate warnings, it may not be unavoidably unsafe. Thus, if a prescription drug is marketed with no indication as to how it should be taken, or by whom it should be taken, it may not come within the unavoidably unsafe exception. Similarly, if the drug is marketed with no warnings as to potential adverse reactions or contraindications, it may not be considered unavoidably unsafe.

Utility vs. Risk

The third requirement is that the utility or usefulness of the product must outweigh its risk of danger. So, for example, if a drug cures a mild case of hiccups but causes death in half the people who use it, it may not qualify as unavoidably unsafe. It is worth noting that a product need not save lives to be considered useful. Products ranging from birth control medications to beauty products have been found to be sufficiently useful to warrant the risk associated with their use.

Available Alternatives

The fourth requirement is that there must not be any other way to fully achieve the intended purpose of the product. If there is an alternative product that would be as effective in accomplishing the purpose of the product then the product may not be unavoidably unsafe. In determining whether there was an alternative, courts have considered the risk avoided by the alternative, the financial cost of the alternative, the benefits of the alternative, and the relative safety of the alternative. In the case of the hiccup cure, a bottle of water would be a safe alternative product making the hiccup cure unlikely to qualify as an unavoidably unsafe product.

Types of Unavoidably Unsafe Products

What types of products generally qualify as unavoidably unsafe? The most widely recognized category of products is probably prescription drugs. Indeed, some courts hold that all prescription drugs automatically qualify as unavoidably unsafe on the theory that public policy favors the development of beneficial drugs even though some risks might accompany their introduction. Other courts weigh the usefulness of the drug against its risk of harm in the same manner as they would for any other product. The same reasoning that leads many courts to conclude that prescription drugs are unavoidably unsafe leads courts to conclude that medical devices, vaccines, and blood products are also unavoidable unsafe. When deciding whether these products are unavoidably unsafe the court may look at the type and quality of research done on the drug or device. Courts also look at how necessary to human survival and public health the medical product is, and whether the FDA looked at the medical product to determine its risk vs. its utility.

Although medical products make up the majority of products found to be unavoidably unsafe, the unavoidably unsafe exception is not limited to medical products. Products that have generally qualified as unavoidably unsafe include cleaning compounds such as commercial dry-cleaning solvent, industrial strength bathroom cleaning products, and acetone, as well as cosmetics such as permanent wave solutions, hair bleach and hair dye. Products such as benzene and firearms have also qualified. On the other hand, natural gas stoves, automobiles, folding chairs and fire extinguishers have not been found to be unavoidably unsafe.

Defective and Dangerous Products - Case Preparation Issues

If you have been injured by a defective or dangerous product, it is important that you consult an experienced product liability attorney as soon as possible. Product liability cases are often quite complex, and will require an attorney's expertise from the beginning, in order to ensure all relevant evidence and potential claims are preserved. The following discussion describes some of the steps and considerations that will be taken in the preparation of a product liability action.

Immediate Investigation

The early days following an accident can often be critical in setting the stage for a successful product liability action. The first priority when someone is injured by a defective or dangerous product, after the necessary medical treatment is obtained, is to call an experienced product liability attorney who will make sure that all evidence is preserved. The product that injures a potential plaintiff must be secured immediately to ensure its availability later, which will be necessary in proving a product liability claim, and to guarantee that its condition will not be changed, which can adversely affect one's case.

The defective product should be locked in a facility that you and/or your attorney controls. Never dispose of the product that injured you, unless it presents a risk of immediate harm. Do not sell or give the product to any investigator before consulting an attorney. Major manufacturers carefully read newspapers and often attempt to secure evidence in order to deny plaintiffs the ability to pursue claims.

If the product cannot be secured immediately, put everyone on notice, including tow-truck operators, wrecking yards, and police impounds that they must take every step to preserve the product, which is evidence, and that the failure to do so will subject them to liability for allowing evidence to be destroyed. When the product is in the possession of a third party or one of the potential defendants, your attorney might immediately file an action for a temporary restraining order and a preliminary injunction to avoid alterations to or destructive testing of the product.

Your attorney will want to obtain the complete history of the product, and will seek to determine the date of the original sale, identity of the dealer, distributor, subsequent purchasers, lessees and users. It is important to locate the instruction booklet, assembly booklet, warranties and all other written material that accompanied the new product at the time of the original sale and distribution. You might also be asked to help your attorney determine whether the product was modified or otherwise changed after it left the possession of the manufacturer and distributor and, if so, the identity of the persons or entities that made the modification, and the dates involved.

Experts

A successful product liability case will usually require the assistance and testimony of an expert. Typical types of experts retained in product liability cases are engineers, safety experts, and medical professionals. Finding a qualified expert early in the litigation process is usually the major factor in successfully proving a plaintiff's case.

Expert engineering testimony is often crucial to proving that a design or manufacturing defect in a product caused the plaintiff's injuries. In addition to utilizing engineering testimony, your attorney might rely on the testimony of psychologists or experts specializing in the field of human factors. This is because sometimes, a strict engineering approach fails to consider that a product must be designed not only to work, but also so that people can safely use it. A biomechanical analysis can reveal a hidden danger for the unwary user or a practical way to prevent injuries, based on an understanding of human tendencies and behaviors.

In appropriate cases, expert testing, either destructive or nondestructive, of the product at issue may be necessary to determine whether there is evidence that the product failed or could fail in the manner alleged by the plaintiff.

Above information excerpted by Pamela S. Evers, Assoc. Prof. of Business Law, University of North Carolina Wilmington, from materials available on www.findlaw.com for educational purposes only.

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